Karnataka High Court
Chetan Kumar S/O Puttaraju vs State By Tavarekere Police on 15 June, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:20765
CRL.A No. 1159 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 1159 OF 2011
BETWEEN:
1. CHETAN KUMAR
S/O PUTTARAJU
AGED 22 YEARS
R/A ANDRAHALLI
NEAR ENGINEERING COLLEGE
YESHWANTHPUR HOBLI
BANGALORE NORTH TALUK
...APPELLANT
(BY SRI. C N RAJU.,ADVOCATE)
AND:
1. STATE BY TAVAREKERE POLICE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE
...RESPONDENT
(BY SRI. S. VISHWAMURTHY, ADVOCATE)
Digitally signed by
VEDAVATHI A K
Location: High
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
Court of Karnataka CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED:15/20.10.11
PASSED BY THE P.O., FTC-II, BANGALORE (R) DIST., BANGALORE IN
S.C.NO.191/08 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 366A AND 342 OF IPC
AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I.
FOR A PERIOD OF 2 YEARS 4 MONTHS AND TO PAY FINE OF
RS.20,000/-. IN DEFAULT TO UNDERGO S.I. FOR FOUR MONTHS
FOR THE OFFENCE UNDER SECTION 366-A OF IPC AND ETC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:20765
CRL.A No. 1159 of 2011
JUDGMENT
This appeal is filed by the appellant under section 374 (2) of Cr.P.C for setting aside the judgment of conviction and sentence passed by the Fast Track Court -II, Bangalore Rural District, Bengaluru in S.C.No.191/2008 for having found, guilty and convicted the appellant and sentenced to undergo imprisonment for 2 years 4 months and pay fine of Rs.20,000/- for the offence punishable under sections 366-A of IPC and sentenced to undergo imprisonment for Six months and fine of Rs.2000/- for the offenses punishable under Section 342 of IPC by acquitting accused Nos.2 to 4 for the offence punishable under sections 366, 366A, 342, 502 read with 114 of IPC.
3. Heard the arguments of learned counsel for appellant and learned HCGP for the State.
4. For the sake of convenience, the rank of the parties before the trial court is retained.
5. The case of the prosecution is that on the complaint filed by the PW3/D.Venkatesh on 29.04.2008 alleging that the PW1/the victim girl is daughter of elder sister of PW2/Munirathnamma and she came to stay at his home during -3- NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 the vacation after examination of SSLC and the accused said to be driver working under him. On 28.4.2008, he went to Bangalore along with his friends in his in the car and asked the accused to look after the home. Later, his mother also went to his sister's house, PW2's house at Sunkada Katte and his wife went to her mother's home for delivery since she was pregnant. The victim was alone in the house and when he came back to the house and came to know through PW4 and others, that the accused had abducted the victim girl. Later on he lodged the complaint to police as per Ex.P2, then the police along with PW5, PW6, and PW7 went on tracing the victim at Hunsur and traced the accused Nos.1 to 4 and the victim girl at Hunsur Town. The Police apprehended them, prepared Panchnama as per Ex.P1, seized the Tata Indica car, brought back before the police station and produced before the ASI PW11. In turn, the accused were arrested and remanded to judicial custody on 02.05.2008. Subsequently accused Nos.2 to 4 were released on bail and later the present appellant/accused No.1 was also released on bail on 26.05.2009, as per the order of the High Court. After filing the charge sheet, the case was committed to the Court of Sessions, at FTC-II and the presence of accused was secured. The charges were framed for the -4- NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 offences punishable under sections 366, 366A, 506, 342 and 114 of IPC. The charges were read over to the accused, they denied the same and claimed to be tried. Accordingly, the prosecution examined 13 witnesses and marked seven documents and one material object. During the cross examination, the accused counsel got marked the Exs.D1 to D4. After closing the evidence, the statement under section 313 of Cr.P.C was recorded. The case of the accused was one of the total denial but not entered any defence. After hearing the arguments trial court found the appellant/accused No.1 guilty for the offences punishable under Section 366A and 342 of IPC and awarded the sentence as stated above. However, the accused, Nos.2 to 4 were acquitted for all the charges framed against them. Being aggrieved by the judgment of conviction and sentence, they are before this court.
6. Learned counsel for the appellant has contended that the evidence of eyewitnesses were all set up witnesses and they are all not at all eyewitnesses. As per Ex.P3 there is no houses adjacent to the house of PW3 which was vacant site and there is a road in front of the house. Therefore, the evidence of PW4 to PW7 who are all eyewitnesses which is not -5- NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 believable. The Panchnama at Ex.P4 has been prepared by the police as spot witness without going to Hunsur town as they have stated at Mandya District instead of Mysore district. Except the evidence of PW1, the evidence of other witnesses are not useful to the prosecution case, in spite of the same, the trial court proceeded with the conviction and sentencing of the appellant, which is not correct. The suggestion was made by the counsel for accused that the accused wanted to marry some other girl, whereas the victim herself insisted him to take her along with him. However, this defence was not considered, hence prayed for allowing the appeal.
7. Alternatively, the learned counsel also submits the age of the victim is almost completing 16 years and that the accused was in custody for more than one year during the trial stage and there is no sexual harassment on the victim girl. Therefore, prayed for showing leniency in the sentence.
8. Per contra, learned HCGP supported the judgment of conviction and sentence passed by the trial court and contended that the evidence of PW1/victim girls, clearly reveals the accused forcefully taken her by holding the legs by accused -6- NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 Nos.2 to 3 and also closing her mouth by accused No.1 and taken her in the car and they went to Narasimha Swami temple, later on the way accused No.4 also joined. The accused wanted to marry her, compelled her to marry her, but when she refused to marry and stated that she will commit suicide, therefore accused took her and detained her at Hunsur town for three days, which clearly attracts section 366A and 342 of IPC. Even though there was evidence against accused Nos.2 and 3 but the trial court acquitted them. There is no infirmity in the judgment of the trial court for interference by this court. Hence, prayed for dismissing this appeal.
9. Having heard the arguments and perused the records, the point that arises for my consideration is;
(1) Whether the prosecution proves beyond all reasonable doubt that on 28.4.2008 at 12:30 p.m., accused No.1 along accused Nos.2 and 3 abducted the victim minor girl from the lawful guardian of PW3 and taken her to Hunsur town and compelled her to marry and detained her in the house of Krishnappa, thereby the accused committed offence punishable under section 366A and 342 of IPC?
And -7- NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 (2) Whether the judgment of the trial court calls for any interference?
Before going to the appreciation of evidence, it is worth to mention evidence deposed by the prosecution witnesses before the trial court.
10. PW1/the victim girl, she has deposed that she has studied upto SSLC and after completion of her examination and during the vacation, she has resided in the house of PW3 who is her maternal uncle. She also stated PW2 is her mother and the accused was driver of PW3. That on 28.4.2008, she was alone in the house and the grandmother also was out of the house and PW3 was also out of the house and his wife also had gone to matrimonial house for delivery. The accused came and asked her to come along with him, but when she refused he has dragged her to come out of the house by closing her mouth. At the same time an Indica car came in front of the, house, the accused Nos.2 and 3 were there in the car. The accused No.2 and 3 took her inside the car by holding her legs, then they have taken her to the Ramanagara District by closing the windows and raising the audio and not allowing her to raise any hue and cry. Later, the accused No.4 joined on the way -8- NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 and all of them taken her to temple, where she refused to marry the accused No.1. Therefore, they took her to the Hunsur town in a room and detained there for three days. On the 3rd day the police came and rescued her. During the cross examination, the counsel for accused suggested the victim had fallen in love with the accused, as the accused was dismissed from service by PW3, therefore she got attached with the accused No.1 and the parents of accused No.1 was looking for a girl for his marriage. Therefore, she was not interested and she called the accused No.1 to take her, otherwise she will commit suicide. Therefore, the accused took her at her wish but the same was denied by her. Except the suggestion and denial nothing has been elicited by the counsel for accused to dismiss the evidence of PW1 in order to say that on 28.04.2008, the accused No.1 abducted the victim girl in a car and compelled her to marry him.
11. The PW2/Muniratnamma, mother of victim, she also came to know the missing of the victim from PW3, her brother and she came to know that after rescuing of the victim, the accused was detained and was compelled to marry. -9-
NC: 2023:KHC:20765 CRL.A No. 1159 of 2011
12. PW3/Venkatesh who is the complainant and maternal uncle of PW1. He also deposed in accordance with the complaint made to police as per Ex.P2.
13. PW4/Madhu, PW5/Mahesh Kumar, PW6/Lakkapa and PW7/Paramesh all are the eyewitnesses and they have, deposed, they were talking and sitting in front of house of PW3. The accused No.1 was also there along with some friends, then he went inside the house after some time, they heard the noise while coming near, a car came and took the victim girl in the car and the car went in high speed. Therefore, they were unable to chase the car and then they informed the same to PW3. During the cross examination, the same suggestion were made by the counsel for accused that the victim went along with the accused voluntarily for marrying him, but all of them denied. Except that they admitted that there are no houses in front of the house of PW3 in that area, as per Ex.P3.
14. PW8/Raghunanda who is spot panch witness at Ex.P3 has supported.
15. PW9/Kariyanna who is the seizure panch witness of the car at Ex.P1 is only a formal witness.
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NC: 2023:KHC:20765 CRL.A No. 1159 of 2011
16. PW10/A.M.Nagaraju, Head constable who received the complaint from PW3 as per Ex.P2 and registered FIR as per Ex.P5.
17. PW11/M.Bhaskar, head constable who visited the Hunsur town and apprehended the accused Nos.1 to 4 and rescued the PW1. He has given evidence and seizure of the Ex.P1, preparing the panchanama and producing the accused before the PW12.
18. PW12/N.A.Biradar, the ASI who received the accused from PW11, arrested them and with remand application sent the accused to the Magistrate after obtaining the instruction from the PSI and handed over the further investigation to PW
13.
19. PW13/A.P.Kumar police sub-inspector who obtained the further investigation, recorded the statement of witnesses and handed over the investigation to PW14.
20. PW14/Shankarachar was investigated the matter and filed the charge sheet.
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NC: 2023:KHC:20765 CRL.A No. 1159 of 2011
21. On perusal of the entire evidence on record, the evidence of PW1 to PW3 corroborates with each other regarding missing of the victim girl from the house on 28.04.2008. As per evidence, PW1 she was abducted by the accused in a Car on 28.04.2008. Though PW4 to PW7 were eyewitness to the incident, though they have categorically stated they were present and tried to catch the car, but they could not catch. However, they have stated there are no houses in front of house of PW3. It appears they are all a relative and friends of PW3. The other witnesses are panch witnesses and the Investigation Officers. Therefore, even if, by discarding the evidence of PW4 to PW7 there is no reason to disbelieve and discard the evidence of PW1 who is a victim of the incident. The PW1 categorically stated the accused persons Nos.1 to 3 took her forcibly in the car. They detained her in the Hunsur town and the police came and rescued her. PW11/M.Bhaskar, Head constable, along with other constable, who apprehended the accused, rescued the PW1 and prepared Ex.P1, the pancha nama by seizing the car which reveals the complainant also went along with police and the victim signature also was obtained on the Panchanama. Therefore, the evidence of PW1, PW11 and Ex.P1 corroborates with each other for proving the
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NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 guilt of the accused for abducting the minor girl from the lawful custody and detaining her in the house by the accused No.1. Of course the trial court acquitted the accused Nos.2 to 4 from all the charges, but there is no appeal filed by State, which has attained finality.
22. On perusal of the entire evidence on record mainly on the evidence of PW1 to PW3 and PW11 /investigation officer, I am of the view, the prosecution was successful in proving that the victim girl, aged about 16 years, PW1 was abducted by the accused in his car from the lawful guardians and detained her in Hunsur town. Thereby he has committed the offence punishable under section 366A and 342 of IPC. However, the trial court though rightly given findings against accused No.1 and sentenced to undergo imprisonment for 2 years and 4 months. The trial court though given reason for reducing the sentence, but no proper reason for avoiding 2 years, 4 months custody.
23. Therefore, looking to the facts and circumstances of the case, where the accused though had abducted the victim girl with intention to marry her, but he has not sexually
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NC: 2023:KHC:20765 CRL.A No. 1159 of 2011 assaulted her and there is no complaint against the accused for having harassed her sexually or otherwise.
Therefore, I am of the view the sentence of 2 years 4 months is reduced to one year imprisonment. The accused No.1 said to be a private driver, therefore the sentence is reduced to one year and to pay fine of Rs.5000/- in default of payment of fine, he shall further undergo sentence of 15 days. The appellant is further sentenced to undergo 3 months and pay fine of Rs.1000/- and in default of payment of fine, shall undergo 15 days of simple imprisonment for the offence punishable under Section 342 of IPC.
The appellant has already undergone sentence of one year and 15 days, Therefore he is given set off under Section 428 of Cr.P.C.
Office to send the copy of the judgment to the trial court.
Sd/-
JUDGE AKV List No.: 1 Sl No.: 28